This case, like Commonwealth v. Phifer, ante 790 (2012) (Phifer), concerns a limited search of the recent call list displayed on a cellular telephone that had been seized by the police in a warrantless search of the defendant incident to arrest.
1. Background. A complaint charging the defendant with distribution of a Class A controlled substance (heroin) in violаtion of G. L. c. 94C, § 32 (a), issued from the Dorchester Division of the Boston Municipal Court Department on December 29, 2009. The defendant filed a motion to suppress evidence, which was heard by a Boston Municipal Court judge (motion judge) in June, 2010. In October, the motion judge issued a decision in which she denied the motion to suppress insofar аs it challenged the validity of the stop leading up to the defendant’s arrest and all the results that followed but, as noted previously, allowed the motion to the extent that it challenged the specific search of the cellular telephone’s recent call list.
We summarize the facts as found by the motion judge. At approximately 9 p.m. on December 28, 2009, Sergeant Detective Mark Handrahan and Detective James Rattigan, two Boston police officers in the drug control unit, were on duty in the vicinity of Crescent Avenue and Sydney Streеt in the Dorchester section of Boston, a residential area known for illegal drugs and having a high-crime profile. Both officers were very experienced, and both had received specialized training in narcotics investigations. The motion judge credited the testimony of both officers that cellular telephones are often used to set up drug transactions.
The officers were sitting in their unmarked police cruiser when Rattigan noticed a man who was later identified as the codefendant, Kevin Darosa, walking toward them. Darosa looked thin, gaunt, and “ ‘sick’, like a drug user.” When a car driven by the defendant pulled up in front of the cruiser and stopped, Darosa got in. The officers followed the defendant’s car as it circled the block, observing the defendant and Darosa leaning toward each other several times. In less than five minutes, the defendant stopped the car and Darosa got out. The officers both believed that they had just witnessed a drug transaction taking place. Handrahan thereafter followed Darosa on foot and, after a struggle and seeing a small bag of what he believed to be heroin on the ground next to Darosa, arrested Darosa and radioed Rattigan that he had recovered heroin. Darosa was searched at the scenе, and a cellular telephone was seized from his person. Rattigan at the time was following the defendant, who was driving the wrong way down a one-way street at a high rate of speed. Thereafter, the defendant was stopped by Rattigan with the assistance of a marked cruiser. At the location of the stop, Rattigan аrrested the defendant for selling heroin to Darosa, and seized another cellular telephone from the defendant during a search incident to the arrest.
The judge’s memorandum of decision considered together the defendant’s and Darosa’s motions to suppress, both of which challenged the validity of the search of the cellular telephone.
2. Discussion, a. Standing. The Commonwealth argues that the motion judge erred in allowing the defendant’s motion to suppress because the defendant did not mеet his burden of demonstrating that he had standing to challenge the manipulation and following search of the cellular telephone’s recent call list, insofar as he did not establish that the cellular telephone manipulated and searched was his.
Rather than finding which cellular telephone was searched, the motion judge pointed out in her decision that Rattigan could not remember which; the judge appeared to assume that in the circumstances, it was appropriate to treat both the defendant and Darosa as having standing to challenge the search of the cellular telephone. In our view, the judge’s method of dealing with the Commonwealth’s failure of proof was reasonable, and we do not disturb it.
b. Scope of the Commonwealth’s appeal. For his part, the defendant argues that the issue of standing is the only issue properly before this court.
We disagree. The application for leave to file an appeal that the Commonwealth ultimately filed in the county court raised the question of standing, but also challenged on its merits the motion judge’s decision that the warrantless search of the cellular telephone was improper, and required the suppression of evidence derived from that search. The single justice allowed the Commonwealth’s application to file an appeal without limitation, and also the accompanying request to enlarge the time to file that application. See note 7, supra. Therefore, we consider all the issues the Commonwealth has raised in its application. Cf. Commonwealth v. Goodwin,
c. Search incident to lawful arrest. The motion judge concluded that the search by Rattigan of the cellular telephone was not a lawful search incident to arrest because it was not conducted contеmporaneously with and at the scene of the arrest, but rather at some undetermined point after the defendant had been transported to the police station following his arrest. We come to a different conclusion.
The defendant’s cellular telephone was on his person when seized by the policе at the time of his arrest. Under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, a warrantless search incident to arrest, one of the recognized exceptions to the warrant requirement, may permissibly include a search of the arrestee and items found on his person. Sеe, e.g., United States v. Robinson,
The remaining question concerns the scope of the cellular
3. Conclusion. The allowance of the defendant’s motion to suppress evidence of the search of the cellular telephone is reversed, and the case is remanded to the Boston Municipal Court for further proceedings consistent with this opinion.
So ordered.
Notes
Whether the cellular telephone that the police searched was in fact the one seized from the defendant during а search incident to his arrest is an issue the Commonwealth raises in this appeal. For reasons we discuss infra, we presume that the searched cellular telephone was the defendant’s.
The defendant did not seek to file an interlocutory appeal from the partial denial of his motion to suppress.
We discuss thе procedural history of the Commonwealth’s application to file its interlocutory appeal in more detail infra.
Darosa’s case is not before this court.
The Commonwealth raised the standing argument below in its motion for reconsideration, which the motion judge denied.
The Commonwealth suggests that this court may take judicial notice of papers filed in the Bоston Municipal Court, which, they posit, include Detective Rattigan’s police report, and that report states that the cellular telephone Rattigan searched was Darosa’s. The Commonwealth has included a copy of the report in its brief, and the Commonwealth’s description of it is accurate. Howеver, we decline to adopt the Commonwealth’s suggestion about taking judicial notice of the report. The police report is not part of the record on appeal, and does not appear to have been introduced in evidence at the motion hearing. The Commonwealth relies for its аrgument on First Justice of the Bristol Div. of the Juvenile Court Dep’t v. Clerk-Magistrate of the Bristol Div. of the Juvenile Court Dep’t,
The defendant rests his claim on the following procedural facts: the motion judge issued her decision on the defendant’s motion to suppress on October 6, 2010; the Commonwealth filed a notice of appeal on October 18, but did not file an application for leave to appeal with a single justice of this court as is required by Mass. R. Crim. P. 15 (b) (1), as appearing in
Having concluded that the warrantless search was invalid because not contemporaneous with the arrest, the motion judge did not reach this issue.